Rabess v London Fire & Emergency Planning Authority

Court of Appeal decision holding that an employee's effective date of termination was the date of their summary dismissal, notwithstanding a later internal appeal process which found that that the dismissal should have been on notice.

Facts

R was employed as a firefighter and was dismissed summarily due to gross misconduct on 24 August 2012.  An internal appeal, which concluded on 9 January 2013, was partially upheld; finding that misconduct, rather than gross misconduct, had taken place but that the decision to dismiss should be upheld in any event, as R had been on a final warning.  R was therefore entitled to six weeks' wages in lieu of notice. 

On 6 January 2013, R issued an unfair dismissal claim. The claim was dismissed by the Employment Tribunal, which held that the effective date of termination ("EDT") was 24 August 2012 and therefore the claim was brought outside of the relevant three month time limit.  R appealed to the EAT, which upheld the ET's earlier decision. R subsequently appealed to the Court of Appeal.

Held

The Court of Appeal dismissed the appeal and upheld the EAT's decision.  It confirmed previous authority that the EDT is generally the date of summary dismissal irrespective of whether there might have been a repudiatory breach of contract by the employer.  The Court considered that the EDT could be amended by the process of an internal appeal, but that it was a question of fact to be determined by the tribunal.  In R's case, he had issued a claim before the internal appeal was determined, and the outcome of that internal appeal could not have been said to have made a difference to the EDT.  R understood that he had been dismissed on 24 August 2012 and that he had three months within which to bring a claim; there was no argument that it was not possible for him to do so.

Comment

This decision confirms the longstanding position that an EDT will not generally change by virtue of an appeal. If the appeal overturns a dismissal then the individual will be deemed to have been employed during the intervening period.